Freedom of Association Now Protects the Right to Strike

March 2015

In Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, the Supreme Court of Canada reversed its 1987 decision and concluded that the right to strike is protected under section 2(d) of the Charter: freedom of association. This change comes in the wake of recent SCC decisions which solidified the right to collectively bargain under section 2(d). Ultimately, the SCC concluded “[t]he right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right.”

The facts of the case originated in Saskatchewan’s public sector strikes (nurses, corrections workers, snow plow operators, etc.), which sparked concerns about public safety. The provincial government brought in a new law to regulate and limit public sector employees who perform “essential services” (which was defined broadly) from striking. The public sector employer and the union had the option to negotiate an “essential services agreement” in the event of work stoppage but, failing an agreement, the employer could unilaterally dictate the essential services levels. Where the employer was the government, essential services were governed by regulation. Effectively, the essential services employees’ ability to strike was very restricted. As a result, the unions challenged the constitutionality of these laws under s. 2(d).

In a 5-2 decision, the SCC majority stated that the historical, international, and jurisprudential landscape supported the finding that without the right to strike, “a constitutionalized right to bargain collectively is meaningless”. Stated differently, the right to strike gives unions a necessary lever for collective bargaining (the sanction of collectively withdrawing services). The SCC found that this lever is required to help rectify the fundamental power imbalance in employment relationships.

Applied to the essential services aspects of the impugned law, the SCC concluded that the absence of “meaningful dispute resolution mechanisms” was fatal, and not minimally impairing on the freedom of association. The key pieces/ processes missing in the law were:

an impartial and effective dispute resolution process to consider an employer’s unilateral designation with regard to the maintenance of essential services, such as whether the service is essential, or which job classifications involve the delivery of genuinely essential services; and

access to a meaningful alternative mechanism for resolving bargaining impasses, such as arbitration, which was viewed as crucial for essential services employees.

The SCC concluded by noting that “Mere inconvenience to members of the public does not fall within the ambit of the essential services justification for abrogating the freedom to strike.” Rather, essential services have been defined as “… those needed to prevent a ‘clear and imminent threat to the life, personal safety or health of the whole or part of the population.”

Takeaways from the Decision

Applied to B.C., there is a strong argument that the BC Labour Relations Code provides an impartial and effective dispute resolution process for essential services disputes. As a result, process #1 above is addressed in B.C.

However, regarding process #2 in B.C., not all essential services employees have a “meaningful alternative mechanism for resolving bargaining impasses”, e.g. binding arbitration. Going forward, unions may push for such a process where there is not already one.

Under either of the processes, unions will likely use the language in this case to reaffirm or increase the threshold of what is an essential service: “a clear and imminent threat to the life, personal safety or health of the whole or part of the population”.

The case also looked at another Saskatchewan law that made the certification of unions harder for employees (higher card thresholds, shorter card expiry periods, eliminating the automatic certification option, allowing employers to communicate “facts and its opinions to its employees” during the certification process without it being an unfair labour process). This law was upheld by the SCC and is reflective of what is already permitted under the BC Labour Relations Code.

The SCC continues to overturn its own decisions to afford Charter rights to unions in order to rectify the “power imbalance” held by employers.